Matthew Thornbrough v The State Of Oklahoma

F 2008-287

Filed: Mar. 25, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Matthew Thornbrough appealed his conviction for several crimes. Conviction and sentence include 6 years for a firearm offense, 6 years for operating a police radio, and more, totaling various sentences that run together, with fines for traffic violations. Judge Johnson dissented.

Decision

We hold that Thornbrough's conviction for count two of the Information shall be REVERSED and REMANDED with instructions to DISMISS. The remaining convictions and sentences shall be AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the detention, search and seizure of Appellant in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article II, § 30 of the Oklahoma Constitution?
• Was there sufficient evidence that Appellant was operating a police radio in violation of 21 O.S.2001, § 1214?

Findings

• the detention, search, and seizure of Appellant did not violate the Fourth and Fourteenth Amendments as well as Article II, § 30 of the Oklahoma constitution
• the evidence was not sufficient to support the conviction for operating a police radio in violation of 21 O.S.2001, § 1214
• the conviction for count two must be reversed and remanded with instructions to dismiss
• the convictions and sentences for the remaining crimes shall be affirmed

F 2008-287

Mar. 25, 2009

Matthew Thornbrough

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Matthew Thornbrough was tried on several counts at a bench trial before the Honorable Thomas Gillert, District Judge, in Tulsa County District Court Case Number CF-2007-1663. At the conclusion of the bench trial, Judge Gillert convicted and sentenced Thornbrough with the following:

1. Possession of a firearm after former conviction of a felony in violation of 21 O.S.Supp.2006, § 1283; punishment set at six (6) years imprisonment;
2. Operating a police radio while in commission of a felony, 21 O.S.2001, § 1214; punishment set at six (6) years imprisonment;
3. Knowingly concealing stolen property, 21 O.S.2001, § 1713; punishment set at five (5) years imprisonment;
4. Unlawful possession of a controlled drug, 63 O.S.Supp.2006, § 2-402; punishment set at five (5) years imprisonment;
5. Unlawful possession of drug paraphernalia, 63 O.S.Supp.2006, § 2-405; punishment set at one (1) year;
6. Failure to stop at a red light – $50.00 fine only
7. Speeding – $25.00 fine only
8. Unlawful carrying of a concealed weapon, 21 O.S.Supp.2006, § 1272; punishment set at six (6) months.

All sentences were ordered to be served concurrently. Thornbrough has perfected an appeal of the judgments and sentences to this Court and raises the following propositions of error.

1. The detention, search and seizure of Appellant violated the Fourth and Fourteenth Amendment to the United States constitution as well as Article II, § 30 of the Oklahoma constitution.
2. There was insufficient evidence that Appellant was operating a police radio in violation of 21 O.S.2001, § 1214. His conviction in Count II must be reversed with instructions to dismiss.

After thorough consideration of Thornbrough’s propositions of error and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we have determined that the conviction for count two must be reversed and remanded with instructions to dismiss; the convictions and sentences for the remaining crimes shall be affirmed.

In reaching our decision, we find, in proposition one, the initial stop of Thornbrough was valid and based on violations of State traffic laws. Lozoya v. State, 1996 OK CR 55, ¶ 32, 932 P.2d 22, 32. Further, an officer may ask a person to exit their vehicle during a traffic stop. McGaughey v. State, 2001 OK CR 33, ¶ 35, 37 P.3d 130, 140. We also find, moreover, that the officer had a reasonable and articulable suspicion that criminal activity may be afoot which justified extending the stop and initiating a pat-down search of Thornbrough. State v. Paul, 2003 OK CR 1, ¶ 3, 62 P.3d 389, 390; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In proposition two, we find that the State failed to prove beyond a reasonable doubt that Thornbrough operated a radio capable of receiving police transmissions; mere possession is not sufficient. Davenport v. State, 1973 OK CR 271, ¶ 9, 510 P.2d 988, 990.

DECISION

We hold that Thornbrough’s conviction for count two of the Information shall be REVERSED and REMANDED with instructions to DISMISS. The remaining convictions and sentences shall be AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL

RICHARD CLARK
ALLEN R. MALONE
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
ATTORNEY FOR APPELLANT

APPEARANCES ON APPEAL

STUART W. SOUTHERLAND
ASSISTANT PUBLIC DEFENDERS
TULSA COUNTY
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
ATTORNEYS FOR DEFENDANT

LEE BERLIN
W. A. DREW EDMONDSON
NALANI CHING
ATTORNEY GENERAL
JAMES M. HAWKINS
CHRISTY A. BAKER
ASSISTANT DISTRICT ATTORNEYS
ASSISTANT ATTORNEY GENERAL
TULSA COUNTY
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
500 SOUTH DENVER
TULSA, OK 74103
ATTORNEYS FOR APPELLEE
ATTORNEYS FOR STATE

OPINION BY: LEWIS, J.

C. JOHNSON, P.J.: Concur

A. JOHNSON, V.P.J.: Concur

LUMPKIN, J.: Concur in Results

CHAPEL, J.: Concur

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Footnotes:

1. 21 O.S.Supp.2006, § 1283
2. 21 O.S.2001, § 1214
3. 21 O.S.2001, § 1713
4. 63 O.S.Supp.2006, § 2-402
5. 63 O.S.Supp.2006, § 2-405
6. 21 O.S.Supp.2006, § 1272
7. Lozoya U. State, 1996 OK CR 55, I 32, 932 P.2d 22, 32
8. McGaughey v. State, 2001 OK CR 33, I 35, 37 P.3d 130, 140
9. State v. Paul, 2003 OK CR 1, 9 3, 62 P.3d 389, 390
10. Terry U. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
11. Davenport v. State, 1973 OK CR 271, I 9, 510 P.2d 988, 990

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283 (2006) - Possession of firearm after former conviction of felony
• Okla. Stat. tit. 21 § 1214 (2001) - Operating a police radio while in commission of a felony
• Okla. Stat. tit. 21 § 1713 (2001) - Knowingly concealing stolen property
• Okla. Stat. tit. 63 § 2-402 (2006) - Unlawful possession of a controlled drug
• Okla. Stat. tit. 63 § 2-405 (2006) - Unlawful possession of drug paraphernalia
• Okla. Stat. tit. 21 § 1272 (2006) - Unlawful carrying of a concealed weapon

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Lozoya v. State, 1996 OK CR 55, I 32, 932 P.2d 22, 32
• McGaughey v. State, 2001 OK CR 33, I 35, 37 P.3d 130, 140
• State v. Paul, 2003 OK CR 1, I 3, 62 P.3d 389, 390
• Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
• Davenport v. State, 1973 OK CR 271, I 9, 510 P.2d 988, 990